Facebook sex tape case has implications for privacy law in Australia

Michaela Whitbourn

A West Australian woman has won almost $50,000 in compensation from an ex-boyfriend who posted sexually explicit videos and photos of her on Facebook, in a significant ruling on personal privacy law.

Caroline Wilson, a fly-in, fly-out worker at Fortescue Metals Group's Cloudbreak mine in the Pilbara, took her ex-boyfriend and former colleague Neil Ferguson to court after he posted 16 photos and two videos of her on his Facebook page.

The ALRC also said it was "desirable" for Parliament to "clarify the courts' powers to award compensation for emotional distress" in breach of confidence cases.

Justice Mitchell referred to a 2008 Victorian Court of Appeal decision, Giller v Procopets, in which a woman won compensation for emotional distress after her former partner distributed copies of sexually explicit videotapes of the pair.

Justice Mitchell said this was the only case he would find in which a superior court in Australia grappled with the same issues. Since the events in Giller, which took place in 1996, technological advancements had "dramatically increased the ease and speed" of disseminating images and other material.

He ruled that Ms Wilson was entitled to an injunction and $48,404 in compensation, including $35,000 for emotional distress and $13,404 for loss of wages while on leave. Mr Ferguson was sacked over the incident.

Associate professor David Rolph, a media law expert at the University of Sydney Law School, said the case "indicates that breach of confidence might provide a remedy for addressing a lot of personal privacy concerns".

But he noted that applying existing causes of action to new situations they do not "neatly fit" may distort the law and have unintended consequences.

"My own view is that if privacy is a value that's worth protecting it's worth protecting directly and we should think about that in a broader, more comprehensive way," he said.